Lack of jurisdiction of the Constitutional Court

According to Article 16, paragraph 4, item 1 of the applicable Rules of the BiH Constitutional Court, an appeal is inadmissible if the Constitutional Court is not competent to take a decision. Neither the former version of the Rules of the Constitutional Court, nor Annex 6 of the GFAP provide for such a provision. In addition to the aforementioned provision, item 9 of the same paragraph (ratione materiae competence), item 10 (ratione personae competence) and item 11 (ratione temporis competence) also relate to the lack of competence of the Constitutional Court. The three last provisions can be found in Article VIII.2(c) of Annex 6, relating to the compatibility of the application with Annex 6.

Article 16, paragraph 4, item 1 of the Rules of the BiH Constitutional Court is therefore a general provision which could be used to take decisions on those cases relating to the Constitutional Court’s incompetence that are not regulated in other provisions. This could be the cases of the Constitutional Court’s incompetence ratione loci. The practice of the Constitutional Court indicates that the Constitutional Court made use of Article 16, paragraph 4, item 1 of the Rules of the BiH Constitutional Court for resolving the cases relating to the Constitutional Court’s incompetence in which another reason for incompetence was explicite provided for by the Rules. In that way, the dividing line between the provisions relating to the incompetence became too thin and, very often, unclear.

One of these groups includes the appeals ratione personae incompatible with the BiH Constitution. The appeals are inadmissible, since the author of the challenged act cannot have the status as respondent party before the BiH Constitutional Court, i.e., it does not have the legal standing to be sued. So, in the case of an appeal filed against a decision of the Human Rights Chamber, the Constitutional Court declared itself incompetent by referring to Article 16, paragraph 2, item 1 of the Rules of the BiH Constitutional Court, although the Constitutional Court’s lack of competence in such cases is clearly stipulated by item 12.³¹²⁵ Furthermore, in a case relating to the appeal against a decision of the Ombudsman of the Federation of BiH, the Court referred to item 1, although the Court was obviously not competent ratione personae.³¹²⁶ The same applies to the decisions of the Real Property Claims Commission established in accordance with Annex 7, either at the time when that body was composed of international members,³¹²⁷ or at the time when it was exclusively composed of national members.³¹²⁸

The next group of cases, which are incorrectly included in item 1 of this provision, are the cases in which the appellants have failed to exhaust effective legal remedies.³¹²⁹

Finally, in certain cases relating to the ratione materiae competence of the Constitutional Court, the Constitutional Court referred to item 1, since the case did not relate to the protection of any constitutional right or freedom, or the nature of the challenged act was not such as to require an examination (Article VI.3 (b) related to judgments).³¹³⁰